Law Japan is so reluctant to penalize hate

Law
and Society in Japan – Final Paper

van der Plas, Maarten Adriaan Pieter, ID: 201518012,
Date: Jan. 5, 2017

The
Right to Hate: Constitutional Obstacles to Hate Speech Legislation in Japan

 

1.      
Introduction
and Research Question

After
significant hurdles, Japan finally became a participant in December 1995 to the
1966 International Convention on the Elimination of All Forms of Racial
Discrimination (CER). Yet, just as the United States, it attached a
reservation, saying that Japan will fulfill the obligations of the treaty to
the extent that it is compatible with the “rights of freedom of assembly,
association and expression and other rights under the Constitution of Japan”.
Some two decades later, Japan’s Diet passed the Hate Speech Act of 20161, the
first law of its kind. However, while the law aims to reduce hate speech, and
while it arguably exists in order for Japan to fulfill its obligations under the
CER2, in
part owing to the protection of the freedom of expression as found in the
Japanese Constitution, it does not in fact lay out punishments for those who
utter hate speech3,
and the act is unlikely to be very effective in stopping hate speech. Despite
increasing international pressure on Japan to enact stricter regulations on
hate speech, somewhat like the United States, so far, it has not enacted such
legislation. This paper aims to find out why it is that Japan is so reluctant
to penalize hate speech, and what obstacles are present in its constitution or
law that make regulations difficult.

2.       Literature
Review

For
starters, in answering the above question, it is paramount to have a firm grasp
of matters concerning the Japanese Constitution, an in this regard, Ashibe’s “Kenp?”
(2016) will be the primary literature to consult. Nobuyoshi Ashibe may be the
most renowned Japanese constitutional scholar, and his “Kenp?” can be
considered an advanced introduction to the Japanese Constitution. For more
in-depth analysis of free speech issues, Ichikawa (2003) will be referred to.
This book deals with theories regarding the freedom of speech, and how Japanese
and US courts apply certain theories. As will be seen, much of free speech
theory and judicial practice originates in the United States, and although this
book focusses on free speech and Japanese courts, references to important
American cases are abound. Since free speech theory is often related to
American jurisprudence, Hemmer’s “The Supreme Court and the First Amendment”
(1986) will be used to understand such theory from an American viewpoint. It
will be useful especially when considering the “clear and present danger test”,
which, as will be seen, is often used in Japanese courts but originates from
the US. Finally, Fisch (2002), which deals directly with hate speech and the US
Constitution, gives more insight in the obstacles to hate speech regulation in
that country, and also considers possible ways to regulate hate speech
alternatively under the libel law (“group libel law”).  

3.       Analysis

Discussion
of the protection of free speech, and hate speech issues, is to start with
mentioning Article 21 (1) and (2) of the Japanese Constitution: (1) “Freedom of
assembly and association as well as speech, press and other forms of expression
are guaranteed.”; (2) “No censorship shall be maintained, nor shall the secrecy
of any means of communication be violated.” Thus, Article 21 protects the
freedom of various types of expression. Yet, as is the case in most
democracies, the guarantee of freedom of expression is not limitless: most
democracies have laws prohibiting libel, obscenity or sedition, etc. Thus, in
some cases, the government is justified in limiting the freedom of expression.

When
discussing the constitutionality of regulations on forms of expression, it is
first important to consider the so-called “double standard theory”. According
to this theory, courts are to be more rigorous and have to subject to more
scrutiny legislation that limits “mental freedom”4 than
legislation that limits economic freedom.5 The
basis for this theory is that: 1) such mental freedom (like freedom of
expression), is necessary for a democracy to function at all, and it is
necessary to have a functioning democracy before any other governmental
regulations can be construed; 2) the fact that regulations on economic freedom
are often highly technical, and courts are not as able to deal with the
constitutionality of economic policy as they are in dealing with matters of non-economic
nature.6 Thus,
legislation restricting freedom of expression is subject to the more rigorous
constitutional review.

Legislation
that restricts freedom of expression can be characterized as either being
content neutral or content based. Though a relatively recent distinction, it is
now, in for example the American context, often a decisive factor when
considering the constitutionality of such legislation.7 In
the US, restrictions that are content based are subject to far more rigorous
scrutiny than content neutral restrictions. This distinction is now to be found
in Japanese jurisprudence too: a similar approach was taken by the Japanese
Supreme Court in the Sarufutsu Case.8 In
this case, a statutory prohibition of public officials’ engagement in
distributing political party-issued newspapers was found constitutional. This
is because such acts have the “risk of undermining the political neutrality of
the public official and the government organ to which he belongs”.9 Thus,
such prohibition’s aim was to stop the negative effects such expressions would
have, and not to stop the particular content of the expression. It therefore
constituted a content neutral restriction, and was subsequently held to be
constitutional.10

There
is however considerable doubt as to whether it is justified to put greater
scrutiny on content neutral restrictions than content based restrictions, as it
is not clear that either of the two has much greater potential to limit free
speech. Regardless, it does seem that Japan’s courts tend to be less rigorous
when it comes to content neutral restrictions.11 If
it is true then, that the Japanese judiciary is extremely rigorous vis-à-vis
content based restrictions on freedom of expression, and if it is also true
that restrictions on hate speech are to be categorized to be of the sort that
is content based, it would follow that restrictions on hate speech are to be
subjected to the most rigorous of constitutional review. There are, however, no
Japanese Court decisions as to whether restrictions on hate speech are to be
categorized as content based restrictions however, because Japan has hitherto
not enacted such legislation in the first place.12

Of
course, it is noteworthy that in some cases, content based restrictions are
constitutional. Developed first in an American context, the “clear and present
danger test” (hereinafter: “the Schenk Test”) offers some insight in how
certain content based restrictions do not violate the First Amendment. This
test was developed in the beginning of the 20th century, in the
context of the First World War and the constitutionality of the federal
Espionage Act of 1917. 13
According to Justice Holmes: “The question in every case is whether the words
used are in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that
Congress has a right to prevent.”14 To
pass the Schenk Test, it is necessary that: 1) the speech has a clear
possibility to cause real harm in the immediate future; 2) that such harm is
great and immediate; 3) and that the restrictions are absolutely necessary to
prevent such harm.15 It
is therefore an extremely rigorous test. Looking at the context in which the
test was developed, it is important to note that it is also very much dependent
on the social context. Holmes argued in the Schenk that while in
ordinary times, Schenk’s conduct would have been within his constitutional
rights, the circumstances of his situation (the country being at war) made his
expression to be outside the boundaries of protected speech.16
Thus, if, say, hate speech in Japan, for some reason would cause clear and
present danger, it is conceivable that its restriction through legislation
would be constitutional.

Two
important cases, one regarding the distinction between content neutral and
content based restrictions, and the other concerning the Schenk Test, will be
considered. In R.A.V. v. City of St. Paul, Minnesota (1992), the US
Supreme Court decided that, while fighting words (face-to-face insults that are
likely to start an immediate fight) are not subject to the protection of the
First Amendment (this seems intuitive if one applies the “Schenk test”),
punishing a particular form of fighting words based on its content, requires at
least the evidence that it is necessary to punish such particular form because
it has the chance of causing considerably greater harm.17
Again, this is a clear example of the distinction made between content neutral
and content based restrictions, for a broad ban on all fighting words would be
permissible. In Brandenburg v. Ohio, 395 U.S. 444 (1969), Brandenburg, a
member of the Ku Klux Klan, was convicted under the Ohio syndicalism statute.
He appeared in a film where he delivered the following statement: “The Klan has
more members in the State of Ohio than does any other organization, but if our
President, our Congress, our Supreme Court, continues to suppress the white,
Caucasian race, it’s possible that there might have to be some revenge taken.
We are marching on Congress, July the Fourth, four hundred thousand strong.”18 The
Supreme Court decided that Ohio’s statute was not permissible, because the
guarantee of freedom of expression does not allow a state to prohibit advocacy.
Moreover, “speech which calls for illegal action but does not seek immediate
action is protected. In addition, speech which calls for immediate illegal
action but where there is reason to believe that the audience will not commit the
action is also protected.”19 This
decision seems to have revived the Schenk Test.20

May
it then be possible to protect minority groups from hate speech through the
established criminal and social wrong of libel? “Group libel” has rarely been
used in this sense with success, and the only US Supreme Court case that dealt
with the issue directly is Beauharnais v. Illinois, 343 U.S. 250 (1952).21
While most of the judges in this case agreed that it is at least
constitutionally permissible to extend state libel laws to protect collectives,
Beauharnais is now broadly considered to no longer be good law, because
of restrictions placed on libel being an exception to the First Amendment.22 Still,
at least in a Japanese context, it is possible that existing laws on libel,
defamation, etc., can be somewhat effective in condemning and punishing hate
speech (in one Supreme Court case, the plaintiff was able to receive damages).23
Still, whether the existing laws of Japan offer a balance between the
protection of free speech and the restriction of hate speech is debatable.

4.       Conclusion

As
we have seen, though Japan recently passed the first law that specifically
addresses hate speech, this law itself will likely be ineffective (and was
perhaps not supposed to be effective) in combatting hate speech, and it may be
interpreted rather as a way for Japan to fulfill its obligations under
international treaties. Similar to the United States, Japan has no regulations
on hate speech, and in fact, the doctrines the courts use share many
similarities to US jurisprudence. This might have to do with the fact that the
First Amendment and Japan’s Article 21 are quite similar, as well as the fact
that Japan’s Constitution was largely drafted by the Americans. We have seen
that the courts adopt a double standard in constitutional review, where
restrictions on “mental freedom” are subject to greater scrutiny than
restrictions on economic freedom. Furthermore, restrictions on freedom of
speech that are content based are subject to far greater scrutiny than
restrictions that are content neutral. As we have seen in the Sarufutsu
case, the Japanese Supreme Court seems to be taking this view. Thus, though
Japanese legal precedent is not available, it is likely that hate speech
regulation will be categorized as both being a restriction on mental freedom and
being content based restrictions, meaning that it will be subject to
the utmost scrutiny. This perhaps explains the reluctance of the legislature to
legislate such laws. To be sure, this is not to say that laws falling in the
above two categories, as hate speech likely would, are always unconstitutional.
In an American context for instance, with the Supreme Court adopting the “Schenk
Test”, some content based statutes were found to be constitutional. However, it
bears mentioning that the Schenk Test is an extremely rigorous test, and it
will be the rare statute that passes it. We have considered two US Supreme
Court cases, R.A.V. v. City of St. Paul, Minnesota (1992) and Brandenburg
v. Ohio, 395 U.S. 444 (1969), that make clear just how hard it is to pass
the Schenk Test. Finally, we have considered the possibility of restricting
hate speech through “group libel” rules, but in a US context, this has so far
not been successful. Regardless, the question remains as to whether Japan’s
existing laws on defamation, libel, etc., are sufficient for it to fulfill its
international obligations and to deal with domestic hate speech problems.

5.       Bibliography

·        
Ashibe, Nobuyoshi. “Kenp?” 4th
Edition. Tokyo: Iwanami Shoten (May 2016)

·        
Chemerinsky, Erwin. “Content Neutrality as
a Central Problem of Freedom of Speech: Problems in the Supreme Court’s
Application”. 74 Southern California Law Review 49-74 (2000) https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1706=faculty_scholarship
(accessed on Jan. 8, 2018)

·        
Fisch, William B. “Hate Speech in the
Constitutional Law of the United States”, 50 Am. J. Comp. L. 463 (2002)

·        
Hemmer, Joseph J. “The Supreme Court and
the First Amendment”. New York: Praeger Publishers (1986)

·        
Ichikawa, Masato. Hy?gen no Jiyuu no
houri (????????). Tokyo: Nihon Hy?ronsha (February
2003)

1 In
Japanese: “????????????????????????????????????”

2 Osaki,
Tomohiro (May 24, 2016). “Diet passes Japan’s first law to curb hate speech”.
Japan Times. Accessed Dec. Jan, 2018: https://www.japantimes.co.jp/news/2016/05/24/national/social-issues/diet-passes-japans-first-law-curb-hate-speech/#.WgX0MmT81QI

3 Yoshino,
Tar? (May 24, 2016) “????????????????????????????????”.
Huffington Post. Accessed Jan. 5, 2018: http://www.huffingtonpost.jp/2016/05/24/hate-speech-law_n_10117236.html

4 In Japan
referred to as “?????”, see
Ashibe (2016)

5 Ashibe
(2016), pp 193 – 194

6 Ibid.

7 Chemerinsky
(2000), p 53

8
Keish?, Vol. 28 No.9, p 393

9
Summary of the Judgent (decision), English translation from http://www.courts.go.jp/app/hanrei_en/detail?id=1180
(accessed Jan. 6, 2017)

10 Ichikawa
(2003), pp 76 – 77

11 Ashibe
(2016), p 197

12 Ichikawa
(2003), p 55

13 Fisch,
William B. Hate Speech in the Constitutional Law of the United States, 50 Am.
J. Comp. L. 463 (2002)

14 Schenck
v. United States, 249 U.S. 52 (1919)

15 Ashibe
(2016), p 208

16 Hemmer
(1986), p 13

17
Fisch (2002), p 465

18 Quoted from
Hemmer (1986), p 18

19 Ibid.

20 Ashibe
(2016), p 209

21 Fisch
(2002), p 478

22 Volokh,
Eugene. “No, there’s no “hate speech” exception to the First Amendment”. The
Washington Post, May 7, 2015. Accessed Jan. 6, 2018: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/?utm_term=.3698ef3e331e

23 Ashibe
(2016), p 196